144 F. 548 | D.N.J. | 1906
On November 1, 1905, Abraham Rosenthal and Michael Rosenthal made a general assignment to William Schmidt for the benefit of their creditors. The assignee qualified and took possession of the assignors’ estate. On January 4, 1906, the assignors filed in this court their petition in voluntary bankruptcy, and on the same day were adjudicated bankrupt. The case was thereupon referred tó a referee in bankruptcy, who, upon the petition of Abraham Rosenthal, sworn to on January 3d, made an order, dated January 5th, appointing a receiver of the estate of the bankrupts, and ordering “that William Schmidt, the assignee for the benefit of said creditors of said bankrupt, deliver to the said receiver all property, moneys, effects, books, and property now in his possession or under his control assigned to him by said bankrupts, or the proceeds of property so as aforesaid assigned.” A number of the creditors of the bankrupts thereupon filed with the referee the petition for review now before the court.
A comparison of the list of creditors who are the petitioners in the petition for review with the list contained in- the schedules annexed
The only facts presented to the referee in the present case were those contained in Abraham Rosenthal’s petition, and they were merely that he and Michael Rosenthal were partners in the silk manufacturing business; that on November 1, 1905, the firm made an assignment to William Schmidt for the benefit of their creditors; that Schmidt thereupon took possession of their property, the estimated value of which was about $8,000; that he and Michael Rosenthal were about to file their petition in voluntary bankruptcy; and that he “verily believes that it will be to the benefit of all persons in interest that a receiver of this court do forthwith seize and take possession of all property belonging to said partnership and now in the hands of said assignee.” There is no intimation in the petition that the assignee is doing anything prejudicial to the interests of creditors or in conflict with the provisions of the bankruptcy act. Nor, in the order made, is there any finding that it is absolutely necessary for the preservation of the bankrupts’ estate that a receiver be appointed. It follows that the referee's order must be set aside and the petition on which it was made be dismissed.
In the petition for review it is also alleged that the order of the referee was erroneous because “it appears from said petition [that is,